Quick Blurb About Section 109(g)

Under 109(g), an individual (or family farmer) may not be a debtor if “(2) the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay provided by section 362 of this title

I tell my clients that if we move to voluntarily dismiss a case after a relief from stay motion is filed, there will be a 180 day bar to refiling. Something in my brain changed the word from “following” to “after.” It turns out that they do not mean the same thing.

Section 109(g) was added to prevent debtors from abusing the system by dismissing their cases right before a hearing on relief from stay could be heard and/or granted; thereby depriving the creditor from obtaining an adverse ruling. It was not designed to bar debtors from filing cases in situations where relief from stay was filed years earlier or if issues with respect to the RFS motion were handled.

The most obvious example is the case where RFS is filed and the Debtor wins. Why would there be a bar? So keep this in mind the next time the UST requests a bar because RFS had been filed!

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